Any uncertainty as to whether a psychiatrist can provide an expert report as a paper-based assessment is answered by this case.

In this case the paper-based assessment was sufficient for the court to conclude that, having regard to the Mental Capacity Act 2005, s 48, there were "reasons to believe that the Appellant lacks capacity". However, the fact that the court did not make a finding of a lack of capacity and transferred the case to a Tier 3 (High Court) Judge of the Court of Protection in order to determine the matter of capacity indicates how the court recognises how much more difficult it is to make a finding when the report relies on a paper-based assessment compared to a consultation with the subject of the report.   

MacPherson v Sunderland City Council (Rev1) [2024] EWCA Civ 1579 

A psychiatrist whose evidence had often been admitted in capacity cases was assisted in this case of a hearing-impaired person by an interpreter who had British Sign Language (BSL) Level 1 training. Her assessment was subsequently criticised as she conducted the assessment without ‘suitable specialist learning support’.

For psychiatrists and psychologists, the case illustrates the importance, in the case of some hearing-impaired subjects, of being assisted, or of the assessment being carried out, by a psychologist or psychiatrist who has experience of the assessment and treatment of hearing-disabled people.

Oldham Metropolitan Borough Council v KZ (Rev1) [2024] EWCOP 72 (T3) 

This case is about whether the judge erred in finding that Ms Soophia Khan had capacity to defend proceedings for contempt of court. This is an important judgment for any psychiatrist called upon to assess fitness to plead and stand trial in a criminal case or litigation capacity in a civil case; and important also for any psychologist whose evidence may be considered in such a case. It is not just because it compares the tests for fitness to plead and stand trial and litigation capacity; it is a rare illustration of not only how a judge at first instance assesses expert evidence in such a case but also of how the court of appeal analyses the judicial reasoning when such a case is appealed.

“Aim for magnetic north in capacity cases”

“Is a section 49 report an expert report?”

“Capacity to consent to elective Caesarean section”